Issue 564 | 11 March 2024
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Did you know that our LexisNexis training webinars are complimentary and most are
CPD compliant?
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Friday, 15th of March at 11am
Get a better understanding of how CaseBase and LexCite work as our case law and legislation citators. Understand the sources from which they draw their information and how they can be used to aid your legal research and save you time.
Duration: 60 min
Click here to register today.
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Wednesday, 20th of March at 1pm
Become more skilled and efficient in your research. Join this session to explore effective methods of conducting searches on Advance to find commentary, legislation and case law, understand the algorithm that runs behind the scenes, and apply advanced filters to generate effective results. Learn to set up alerts and folders, share documents, and customise your publications pod and favourites to ensure that your use of the platform is meeting your research needs.
Duration: 60 min
Click here to register today.
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Thursday, 21st of March at 4pm
New Zealand Forms and Precedents is an encyclopedic resource designed to provide a precedent for every ordinary legal transaction and some extraordinary ones that are not simply academic or court documents. New Zealand Forms and Precedents' authoritative and comprehensive coverage will give you a greater ability to provide forms and precedents appropriate for your clients’ needs and save you time with your drafting. The authors of the titles are specialists in their fields and use a modern drafting approach, making the precedents very user-friendly. This session will show you how to access and use the forms, investigate recent updates and provide an opportunity for you to learn what you need to know about this iconic resource on Lexis Advance.
Duration: 60 min
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Thursday, 28th of March at 4pm
Attend this session to learn how LexisNexis® suite of employment law publications sets you up with authoritative resources to power your employment practice. You’ll get insight into our range of expert employment commentary, including publications such as Mazengarb’s Employment Law, the Employment Law Bulletin, the New Zealand Law Journal, Privacy Law and Practice, the Laws of New Zealand Employment titles and the Practical Guidance module on Employment. We’ll also explore case law and legislation resources, including our powerful citators LexCite and CaseBase.
Duration: 60 min
Click here to register today.
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Company and Securities Law Bulletin
CSLB 1 2024 is now available online.
This issue features two headnotes on recent cases Christian Church Community Trust v Bank of New Zealand and Smith v Fonterra Co-Operative Group Ltd by freelance contributor, Qinhao Zhu.
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Abbott and Thompson District Courts Practice (Criminal)
Service 107 is now available online.
The Costs in Criminal Cases Act 1967, Criminal Procedure Act 2011, Search and Surveillance Act 2012, and Summary Proceedings Act 1957 are amended. Commentary has been updated for the Oranga Tamariki Act 1989, Costs in Criminal Cases Act 1967, and Inferior Courts Procedure Act 1909. An updated Index is included.
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Cross on Evidence
Service 128 is now available online.
The Evidence Act 2006 has been amended and the Evidence (Video Records and Very Young Children’s Evidence) Regulations 2023 have been inserted. Commentary has been updated for Parts 1 and 2 of the Evidence Act 2006 and for chapters 1 and 7 of Evidence law outside of the Evidence Act 2006. Two practice notes have been updated and an updated index is included.
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New Zealand Employment Law Reports
Volume 20 Part 1 is now available online.
AJY v Chief Executive of the Department of Corrections — (2023) 20 NZELR 1
Unjustified dismissal — Unjustified disadvantage — Bullying complaint — Serious misconduct — Remedies — Reinstatement — Employer not responding to bullying complaint made by employee — Whether breaching policy by not responding appropriately — Employee moved to new position without consultation — Breach of duty of good faith — Breach of collective agreement — Whether failure to consult disadvantaging employee — Employee misconduct — Whether employer disciplinary process and outcome fair — Conflict — Mitigating factors — Medical issues — Mental health — Whether reinstatement practicable or reasonable — Compensation — Lost wages — Distress and humiliation — Contribution — Non-publication — Employment Relations Act 2000, ss 4(1)(b), 4(1A)(b), 103A, 123(1)(a), 123(1)(b), 123(1)(c), 124, 125, 128, 128(3) and sch 3 cl 12.
Pact Group v Robinson — (2023) 20 NZELR 42
Personal grievances — Unjustifiable dismissal — Actions of fair and reasonable employer — Employee employed by employer as community support worker — Employer concerned employee submitted fraudulent claims for payment — Employer initiated investigation of employees’ records without consultation with employee — Employer made preliminary conclusion employee had falsified records and made fraudulent claims — Employee requested in-person meeting to discuss matters — Employer refused request and scheduled disciplinary meeting to be held virtually — Employee informed employer as to understanding of flexible reporting practices, discussed nature of work tasks undertaken, raised family and health concerns, and objected to disciplinary meeting being held virtually and adverse impact on mana — Employer dismissed employee next day — Employer’s actions not those of fair and reasonable employer — Employment Relations Act 2000, s 103A.
Personal grievances — Remedies — Compensation — Humiliation, loss of dignity, and injury to feelings — Relevance of “inherent stress” in disciplinary process — Relevance of mana for Māori employees — Relevance of independent or medical evidence to support claims for compensation — Employment Relations Act 2000, s 123.
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Pyne v Invacare New Zealand Ltd — (2023) 20 NZELR 59
Remedies — Unjustified dismissal — Unjustified disadvantage — Whether awards should be increased — Quantum of compensation — Penalty — Lost remuneration — Compensation for non-pecuniary loss — Humiliation — Loss of dignity — Injury to feelings — Contributory conduct — Penalty for breach of good faith — Penalty for breach of employment agreement — Recommendations — Employment Relations Act 2000, ss 4A, 123(1)(c)(i), 123(1)(ca), 128, 128(2), 128(3) and 133A.
Volume 20 Part 2 is now available online.
Henderson Travels Ltd v Kaur — (2023) 20 NZELR 77
Dismissal — Redundancy — Credibility — Secret recording — Admissibility — Compensation and reimbursement — Penalty — Privacy Act 2020 — Wages Protection Act 1983, s 12A — Employment Relations Act 2000, ss 123(1)(b), 123(1)(c) and 128(3).
Helloworld Travel Services (NZ) Ltd v Unsworth — (2023) 20 NZELR 93
Unjustified dismissal — Redundancy — Whether redundancy process unfair — Decision predetermined — Whether flaws minor or inconsequential — Closedown period — Individual notice — Insufficient information — Nature of consultation — Determination of remedies — Redundancy compensation — Lost earnings — Compensation for hurt, humiliation and injury to feelings — Employment Relations Act 2000, ss 123(1)(b), 123(1)(c)(i) and 128(2) — Holidays Act 2003.
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Le Gros v Fonterra Co-Operative Group Ltd — (2023) 20 NZELR 112
Collective agreement — Interpretation — Long service leave — Entitlement — Employee transferring to collective agreement after 15-year anniversary date — Whether employee entitled to long service leave in collective agreement — Principles of interpretation — Distinct nature of employment agreements — Statutory and common law context — Meaning of long service leave clause — Business common sense approach — Relational common sense considerations — Employment Relations Act 2000, ss 56, 189, 214(1) and 216.
Edwards v Laybuy Holdings Ltd — (2023) 20 NZELR 128
Employee — Person intending to work — Conditional offer — Intention to be legally bound — Requirements for raising personal grievance — Employment Relations Act 2000, s 6(1)(b)(ii).
WorkSafe New Zealand v Whakaari Management Ltd — (2023) 20 NZELR 138
Health and safety — White Island/Whakaari eruption — Breaches of duty exposing people to risk of death or serious injury arising from volcanic activity — Charges against person conducting business or undertaking — Defendant granting access to tour operators through licence agreements — Duty to ensure so far as reasonably practicable health and safety of persons on Whakaari — Whether duty of care owed by licensor — Whether managed or controlled workplace enough to be caught by charge — Reasonably practicable steps — Whether duty owed to tourists and workers — Interview admissibility — Whether interview improperly obtained — Health and Safety at Work Act 2015, ss 36(2), 37(1), 168 and 168(1)(f).
Evidence — Admissibility of interview — Health and safety at work — Whether interview of person conducting business or undertaking improperly obtained — Power to compel defendant to attend interview — Stipulation of time and place — Requirement to give reasonable assistance — Whether evidence unfairly obtained — Health and Safety at Work Act 2015, ss 168 and 168(1)(f).
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Family Law Service
Service 214 is now available online.
Rules 26–27B of the Evidence (Video Records and Very Young Children’s Evidence) Regulations 2023 replaced rr 26–27 on 6 January 2024. The regulations allow for expanded access to or disclosure of police video records and transcripts of police video records in the Family Court.
This service also includes updated commentary in the areas of: Care and Protection, Family Protection Act 1955, Family Violence, International Family Law, Maintenance, Protection of Personal and Property Rights Act 1988 and Testamentary Promises.
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Practical Guidance: Family
Latest legal updates
New Zealand Family Law Reports
Volume 2023 Part 10 is now available online.
Jordan v Brooke — [2023] NZFLR 428
Relationship property — Proceedings — Appeals — From Family Court to High Court — Jurisdiction to hear and determine appeals — From interim or interlocutory orders — Decision as to extension of time within which to file application commencing proceedings — High Court has jurisdiction to hear appeal against negative exercise of power because such orders finally determine proceedings — High Court has no jurisdiction to hear appeal against positive exercise of power because such order not “order” in relevant sense — Property (Relationships) Act 1976, s 39 — District Court Act 2016, s 124.
DP v JR — [2023] NZFLR 441
Judicial conduct — Recusal — Judge making adverse credibility findings against party in prior litigation — Consistency — Consideration of new facts and law — New Zealand Bill of Rights Act 1990, ss 22 and 27 — Protection of Personal and Property Rights Act 1988, ss 5, 55 and 103.
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Wilson v Carter — [2023] NZFLR 448
Family violence — Protection order — Appeal against refusal to make final protection order against ex-husband — Parenting dispute over interpretation of parenting order — Family relationship — Whether acts amounting to family violence — Whether protection order necessary — Perception of behaviour — Effect of behaviour on ex-wife — Family Violence Act 2018, ss 9(2), 11, 79 and 83(1).
Nguyen v MacKenzie — [2023] NZFLR 458
Conflict of laws — Child support payments — Enforcement of foreign judgment — Summary judgment — Vietnamese court order — Recognition in New Zealand of foreign judgment — Enforcement at common law — Foreign judgment based on agreement made between parties — Whether agreement reached by parties on amount of monthly child support — Hearsay evidence — Fraud — Contrary to natural justice — Whether judgment obtained by bribery or in breach of natural justice — Evidence Act 2006, ss 18 and 20 — High Court Rules 2016, rr 7.30 and 12.2(1).
Evidence — Hearsay — Enforcement of foreign judgment — Unavailability of witness — Threats of harm — Defendant in summary judgment application relying on hearsay statements — Defence rather than truth of statements made — Evidence Act 2006, ss 18 and 20 — High Court Rules 2016, r 7.30.
Volume 2023 Part 11 is now available online.
Rangi v Mable — [2023] NZFLR 472
Guardianship — Semen donor — Co-parenting agreement — Biological father seeking guardianship of five-year-old child — Pathway to guardianship — Identity of child — Familial community and cultural matters — Māori child — Child being raised within LGBTQI+ community — Tikanga — Whakapapa — Care of Children Act 2004, ss 3, 4, 5, 5(e), 19, 27 and 41 — Family Court Act 1980 — Status of Children Act 1969, s 21 — Te Tiriti o Waitangi.
Parenting orders — Contact — Surname — Semen donor — Co-parenting agreement — Biological father seeking contact and shared surname — Mother cautious about relationship — Identity of child — Familial community and cultural matters — Māori child — Child being raised within LGBTQI+ community — Tikanga — Care of Children Act 2004, ss 3, 4, 5, 5(e), 19, 27 and 41 — Family Court Act 1980 — Status of Children Act 1969, s 21 — Te Tiriti o Waitangi.
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Brooke v Jordan — [2023] NZFLR 490
Relationship property — Extension of time for filing — De facto relationship — Division of property — Eighteen-month delay — Attempting to negotiate resolution without court — Merits of case — Entitlement to share of property — Long relationship — Whether serious injustice if leave granted — Notice of claim to property — Family Court Rules 2002, rr 175, 182 and 186 — Land Transfer Act 2017, ss 142 and 143 — Property (Relationships) Act 1976, ss 8, 13, 18, 18B, 24, 24(1)(c), 24(2) and 42.
Jones v Thomas — [2023] NZFLR 496
Maintenance — Interim maintenance — Proper approach at first instance — Distinguished from final maintenance — Proper approach on appeal — Unnecessary to remit where High Court can modify orders under appeal — Appellant ordered to pay interim maintenance to respondent — Respondent commenced tertiary studies without employment — Primary judge did not consider respondent’s opportunity for earning such income — Interim maintenance orders modified — Family Proceedings Act 1980, s 82.
Volume 2023 Part 12 is now available online.
Bate v Bate — [2023] NZFLR 517
Maintenance — Interim spousal maintenance — Whether legal and accounting fees in ongoing dispute included — Reasonable needs — Assessment of parties’ means — Family Proceedings Act 1980, s 82 — Property (Relationships) Act 1976.
Hagley v Hagley — [2023] NZFLR 530
Family violence — Protection orders — Discharge — Test and criteria — Proper approach where protection order made in favour of parent — Relevance of best interests of children and their views — Relationship between statutory criteria for discharge and best interests of children — Distinction between proceedings with respect to family violence and proceedings with respect to care of children — Family Violence Act 2018, ss 9 and 110.
Family violence — Procedure — Court-appointed lawyer to assist child — Availability of power to appoint in proceedings for protection order made in favour of parent — Power only available in proceedings for protection order on behalf of or against child — Family Violence Act 2018, s 166.
Underhill v Commissioner of the New Zealand Police — [2023] NZFLR 558
Habeas corpus — Overnight detention — Breach of Police safety order — Released from custody — Appropriateness of habeas corpus application — Habeas Corpus Act 2001, ss 3 and 6.
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New Zealand Conveyancing and Property Reports
Volume 24 Part 6 is now available online.
Anderson v Bashford Antiques Ltd — (2023) 24 NZCPR 400
Easements — Right of way — Breach of right of way by owner of servient tenement — Owners of dominant tenement used right of way via gate because right of way as registered blocked by brick wall — Prior owners of servient tenement permitted owners of dominant tenement to use right of way via gate — New owner of servient tenement locked gate and obstructed access to right of way — Owners of dominant tenement sought injunctive relief requiring removal of obstruction and restraint of future obstruction — Relief granted against current owner of servient tenement — Relief refused against successors in title of servient tenement.
Action Helicopters Ltd v van Asch Ventures Ltd — (2023) 24 NZCPR 409
Leases — Cancellation — Relief from notice of cancellation — Lease of aircraft hangar — Breach of clause — Condition of lease that helicopter be leased as well — Whether clause breached — Landlord increasing helicopter rent and imposing new conditions — Status of clause — Reasonable market conditions — Gravity of breach — Admissibility of evidence — Property Law Act 2007, ss 243, 244, 245, 246, 247–252 and 253–264.
Evidence — Admissibility — Privilege — Discussions relating to entering lease — Whether discussions admissible in proceedings.
Commerce Commission v NGB Properties Ltd — (2023) 24 NZCPR 424
Freehold covenants — Anti-competitive covenant — Determination of penalty — Restrictive land covenant substantially lessening competition — Restrictive covenant placed by defendant on land neighbouring defendant’s retail store — Restrictive covenant preventing site being used by competitor — Penalty as effective deterrent — First case imposing penalty for covenant substantially lessening competition — Defendant not realising conduct unlawful — Commerce Act 1986, ss 27, 28, 28(1), 47, 80 and 80(2A).
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Feng v Sea.TX Property Ltd — (2023) 24 NZCPR 434
Sale of land — Rectification — Common mistake — Agreement expressed purchase price as “plus GST” instead of “inclusive of GST” — Vendor required purchasers to settle by way of tendering purchase price plus GST — Parties to agreement had common intention purchase price was inclusive of GST — Appropriate to exercise discretion to rectify contract — Purchasers incurred additional costs to settle at increased purchase price — Vendor ordered to pay amount referrable to those additional costs to purchasers by way of damages.
Future Sustainable Development Ltd v Liu — (2022) 24 NZCPR 452
Sale of land — Waiver — Overseas Investment Act 2005 (OIA) condition — Unilateral waiver of OIA condition by purchaser — Whether clause able to be waived unilaterally — Whether condition benefitting both parties — Vendor not associate of purchaser — Vendor’s interest in purchaser’s compliance with OIA — Contract and Commercial Law Act 2017, ss 43, 44, 45, 46, 47 and 48 — Overseas Investment Act 2005, ss 22, 29, 41F and 42.
Sale of land — OIA condition — Condition waived unilaterally by purchaser — Purported cancellation by vendor for non-fulfilment of condition — Whether cancellation valid — Caveat lodged by purchaser — Removal of caveat.
Waikene Station Ltd v Kydell Downs Ltd — (2023) 24 NZCPR 467
Caveats — Second caveat — Application for leave to lodge — Arguable case — Evidence not establishing arguable case — Land Transfer Act 2017, ss 6, 52, 138, 143 and 146.
Volume 24 Part 7 is now available online.
Zhou v Watson — (2023) 24 NZCPR 480
Sale of land — Vendors’ warranty — Building consents warranty — Vendor caused work to be done on property without building consents — Purchasers claimed non-consented building works caused damage to house by way of leaks and non-watertightness — Vendors’ warranty as to building consents not equivalent to warranty that property was watertight — Vendors breached warranty — Damage to house by leaks not caused by breaching conduct — No relevant damages recoverable.
Mistake — Common mistake — Vendor and purchaser under common mistake that house watertight at time of sale — Purchasers induced by mistake to enter into sale and purchase agreement — Purchasers paid more for property than valued — Proper approach to remedy — Appropriate to spread loss between parties.
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Meadows v Colcroft Holdings Ltd — (2023) 24 NZCPR 518
Caveats — Application to sustain — Agreement for sale and purchase — Obligation of parties to facilitate settlement — Vendor cancelling agreement — Purchaser seeking to investigate water damage in property prior to settlement — Vendor refusing to allow purchaser to investigate — Clause in agreement regarding claims to compensation by purchasers — Whether purchaser required to give notice of claim and follow process under agreement — Whether purchaser precluded from being able to trigger claims process by vendor refusing investigation of damage — Ready, willing and able to settle — Whether purchaser in financial position to settle.
Forbes v Townsend — (2023) 24 NZCPR 530
Sale of land — Misrepresentation — Weathertightness issues and leaks in property — Pre-contractual representation that no leaks in home — Summary judgment on liability — Whether persons nominated as purchasers were able to bring claim for damages in respect of pre-contractual representation not made to them — Whether representation false — Inducement on basis of representation — Whether reasonable to rely on representation — Determination of liability separately — Contract and Commercial Law Act 2017, ss 12, 17 and 35 — High Court Rules 2016, rr 12.2 and 12.3.
Morse v Vast Investment Ltd — (2023) 24 NZCPR 546
Sale of land — Cancellation — Purchaser not settling — Liability not disputed — Forfeiture of deposit — Whether deposit should be taken into account in determining damages — Reasonable interest rate — Whether interim judgment appropriate — Plaintiffs seeking to proceed urgently following disclosure of defendants’ financial position — High Court Rules 2016, rr 11.2 and 12.2(1) — Interest on Money Claims Act 2016.
Volume 24 Part 8 is now available online.
Fuge (as trustees of the Aberdeen Four Trust) v Wimax New Zealand Ltd — (2022) 24 NZCPR 556
Easements — Encroachment — Permanent structure protruding onto right of way easement — Actionable infringement — Substantial interference — Remedy for infringement on easement — Removal of structure not obvious remedy — Arbitration Act 1996, sch 2 cl 5 — Property Law Act 2007, s 313, sch 5 cll 1 and 2 — Land Transfer Regulations 2002, sch 4 cll 1, 6, 10 and 14 — Land Transfer Regulations 2018, cl 6.
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Price (as trustees of the Price Karaka Trust) v Killarney Capital Ltd — (2023) 24 NZCPR 574
Mortgages — Mortgagee sale — Application for interim injunction restraining sale — Process followed by mortgagee — Whether breach of mortgagee’s duty — Duty to take reasonable care to obtain best price reasonably obtainable at time of sale — Whether mortgagee’s failure to obtain registered valuation of mortgaged property prior to sale was a breach of the duty — High Court Rules 2016, r 7.54 — Property Law Act 2007, ss 4, 119, 122, 128 and 176.
Senior Trust Capital Ltd v Holmes — (2023) 24 NZCPR 592
Mortgages — Mortgagee sale — Recovery of outstanding debt — Whether mortgagee breached duty of good faith — Whether mortgagee breached duty to obtain best price reasonably obtainable at time of sale — Pre-existing conditional sale agreement at higher price — Summary judgment — High Court Rules 2016, r 12.2(1) — Property Law Act 2007, s 176.
Civic Lane Ltd v Dibble — (2023) 24 NZCPR 606
Sale of land — Specific performance — Interpretation of agreement for sale and purchase — Price payable for completed apartment — Subsequent price adjustment by developer — Vendor warranty — Whether costs of modifying standard layout of apartment were included in agreed purchase price — Builder and project manager seeking to add charges for various costs associated with redesign of apartment.
General Trust Board of the Diocese of Auckland v Van de Wiel — (2023) 24 NZCPR 617
Leases — Cancellation — Rent increased by Arbitral Tribunal award — Lessee failing to pay increased rent — Whether lessor required to register award as judgment before cancelling lease — Recognition of award versus enforcement of award — Whether relief against cancellation should be granted — Possession of property — Payment of outstanding rent, GST and Tribunal costs — Arbitration Act 1996, sch 1 art 35(1)(b) — High Court Rules 2016, rr 26.20-26.27 — Interest on Money Claims Act 2016, s 10 — Property Law Act 2007, ss 244, 245, 246, 253 and 256 — Public Bodies Leases Act 1969, ss 2, 7(1)(e), 22(2)(e), sch 1 cls 1 and 9.
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New Zealand Resource Management Appeals
Volume 2023 Part 12 is now available online.
CTS Investments LLC v Palmerston North City Council — [2023] NZRMA 548
Residual discretion — Consulting with affected persons before plan change notified — Adequacy of consultation — Resource Management Act 1991, s 86D — Local Government Act 2002, s 82.
Drinnan v Selwyn District Council — [2023] NZRMA 566
District Plan — Proposed plan change — Rezoning of rural land for residential development — Exceptions for urban rezoning in National Policy Statement — Highly productive land — Whether land precluded from residential development — Whether land to be evaluated as part of plan change or separately from it — Development capacity to meet housing demand — Whether land located in rural lifestyle zone — Interpretation of District Plans — Application of National Planning Standard zone — Legislation Act 2019, s 10 — Resource Management Act 1991, ss 32, 42A and 76(2).
Volume 2024 Part 1 is now available online.
Wakatipu Equities Ltd v Queenstown Lakes District Council — [2024] NZRMA 1
Highly productive land — Proper application of national policy statement — Resource Management Act 1991, s 75(3) — National Policy Statement on Highly Productive Land 2022, cl 3.5(7).
Beachen v Auckland Council — [2024] NZRMA 19
Enforcement — Abatement notice — Validity — Limitation period — Notice requiring removal of unconsented dwelling on property — Tiny home on trailer — Owner seeking cancellation of notice — Whether notice invalid as outside 12-month limitation period for laying informations — Whether tiny home “minor dwelling” — Whether “structure” — “Building” — Secondary to principal dwelling on site — Building Act 2004, s 8(1)(a) — Land Transport Act 1998 — Resource Management Act 1991, ss 9, 322 and 338(4).
Wason v Two Kooner Properties Ltd — [2024] NZRMA 33
Enforcement order — Imposition of bond — Risk of insolvency or uncertainty about compliance — Resource Management Act 1991, s 314.
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Disclaimer: This service is intended to provide a summary of information recently made available on the LexisNexis online legal platform. The contents of Summing Up do not purport to be professional advice on any particular matter. The publishers therefore accept no liability for any claim or other action that may arise from the use of the information provided in this publication.
© LexisNexis NZ Limited 2024. All rights reserved.
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